Benjamin Brown v. Michelle Brown ( 2020 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
BENJAMIN BROWN, FOR PUBLICATION
April 9, 2020
Plaintiff-Appellant, 9:00 a.m.
v No. 350576
Monroe Circuit Court
MICHELLE BROWN, Family Division
LC No. 19-040077-DM
Defendant-Appellee.
Before: RONAYNE KRAUSE, P.J., and K. F. KELLY and TUKEL, JJ.
RONAYNE KRAUSE, P.J.
In this child custody dispute, plaintiff appeals as of right the trial court’s order modifying
the parties’ prior custody arrangement to grant sole legal and physical custody of the parties’ five
minor children to defendant. We affirm.
I. BACKGROUND
During the course of their marriage, the parties had eight children, five of whom are still
minors. In the parties’ 2014 consent judgment of divorce, plaintiff was awarded primary physical
custody of the children, and the parties were awarded joint legal custody of the children. The
consent judgment contained a definition of “joint legal custody” enumerating various rights and
obligations of the parties. In 2016, the parties entered a stipulated order purporting to grant
plaintiff sole legal and physical custody of the children, permitting defendant to move to Ohio, and
reserving to defendant a specified amount of parenting time and “reasonable parental rights,
defined as spelled out on attached sheet.” The attached sheet enumerated a list of rights and
obligations that was precisely identical to the definition of “joint legal custody” in the consent
judgment of divorce, including punctuation and formatting. The parties’ last custody order was
entered in 2016 by stipulation and granted plaintiff sole legal and physical custody of the children.
Defendant moved to Ohio around the same time, and plaintiff and the children began living with
plaintiff’s parents near Dundee, Michigan.
In 2018, defendant filed a motion in propria persona for change of custody. Defendant
raised numerous concerns about the children’s care in plaintiff’s custody, including unsafe and
cramped housing conditions, failure to provide the children with basic sanitation and clothing
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needs, failure to provide adequate supervision, neglect of the children’s emotional needs,
denigration of defendant, and interference with defendant’s visitation time and ability to
communicate with the children. Plaintiff generally denied defendant’s assertions, or contended
that some of them were one-time aberrant occurrences. In 2019, represented by counsel, defendant
filed another motion for change of custody. She further asserted that there had been a change of
circumstances since the 2016 stipulated order because plaintiff had moved and was living in an
unsafe residence; plaintiff enrolled the children in an unaccredited school without consulting
defendant; plaintiff threatened to block defendant entirely from seeing the children if she attempted
to have any say in the children’s welfare; and defendant had obtained stable employment, a stable
relationship, stable housing, and ties to her community. She further cited plaintiff’s history of
perpetrating domestic violence and that all of the children had expressed a desire to be in
defendant’s custody.
The trial court held a thorough hearing, taking detailed testimony from the parties, two of
the adult children, various witnesses familiar with the family, and in-camera interviews with all
five of the minor children regarding their preferences. The trial court then granted defendant’s
motion for change of custody, awarding defendant sole legal and physical custody of the minor
children. This appeal followed.
II. STANDARDS OF REVIEW
In matters involving child custody, “ ‘all orders and judgments of the circuit court shall be
affirmed on appeal unless the trial judge made findings of fact against the great weight of evidence
or committed a palpable abuse of discretion or a clear legal error on a major issue.’ ” Yachcik v
Yachcik, 319 Mich. App. 24, 31; 900 NW2d 113 (2017), quoting MCL 722.28. This Court will not
interfere with the trial court’s factual findings “unless the facts clearly preponderate in the opposite
direction.” Shade v Wright, 291 Mich. App. 17, 21; 805 NW2d 1 (2010). Discretionary rulings,
including a trial court’s decision to change custody, are reviewed for an abuse of discretion.
Lieberman v Orr, 319 Mich. App. 68, 77; 900 NW2d 130 (2017). In child custody cases
specifically, an “abuse of discretion” retains the historic standard under which the trial court’s
decision must be “palpably and grossly violative of fact and logic.” Moote v Moote, ___ Mich
App ___, ___, ___ n 2; ___ NW2d ___ (2019) (Docket No. 346527, slip op at p 2) (quotation
omitted). Clear legal error occurs when the trial court “incorrectly chooses, interprets, or applies
the law.” Sulaica v Rometty, 308 Mich. App. 568, 577; 866 NW2d 838 (2014). This Court reviews
the trial court’s determination regarding a child’s best interests for clear error. In re Schadler, 315
Mich. App. 406, 408; 890 NW2d 676 (2016). This Court gives deference to the trial court’s factual
judgments and special deference to the trial court’s credibility assessments. Moote, ___ Mich App
at ___ (slip op at pp 2-3).
III. THRESHOLD FOR MODIFYING CUSTODY
Plaintiff first argues that the trial court erred by finding that defendant established the
threshold requirement for reconsidering the parties’ previous custody arrangement. We disagree.
A. APPLICABLE LEGAL STANDARDS
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“As set forth in MCL 722.27(1)(c), when seeking to modify a custody or a parenting-time
order, the moving party must first establish proper cause or a change of circumstances before the
court may proceed to an analysis of whether the requested modification is in the child’s best
interests.” Lieberman, 319 Mich. App. at 81. “[T]o establish ‘proper cause’ necessary to revisit a
custody order, a movant must prove by a preponderance of the evidence the existence of an
appropriate ground for legal action to be taken by the trial court.” Vodvarka v Grasmeyer, 259
Mich. App. 499, 512; 675 NW2d 847 (2003). “The appropriate ground(s) should be relevant to at
least one of the twelve statutory best interest factors, and must be of such magnitude to have a
significant effect on the child’s well-being.” Id.
In arguing that the trial court erred by finding appropriate grounds to consider modifying
custody, plaintiff first focuses on the sufficiency and weight of the allegations contained in
defendant’s written motion to change custody. Plaintiff’s argument is unpersuasive because the
trial court’s finding of proper cause was not strictly based on the allegations in defendant’s motion.
The court also considered other matters that arose at the evidentiary hearing, namely, the domestic
violence taking place in plaintiff’s household and the historic living conditions related to the
children’s housing, medical, and material needs while in plaintiff’s care. Plaintiff contends that
the trial court erred by making findings concerning these matters that went against the great weight
of the evidence. We disagree.
B. TRIAL COURT’S FACTUAL FINDINGS
The trial court determined that plaintiff’s use of corporal punishment as a disciplinary
method constituted domestic violence. Plaintiff maintains that he always acted in good faith and
on the basis of his religious beliefs regarding the propriety of corporal punishment. We find his
argument unavailing. However sacrosanct parental rights may be, they do not extend to abusing
one’s children. See Corrie v Corrie, 42 Mich. 509, 510; 4 N.W. 213 (1880); In re Gould, 174 Mich.
663, 669-670; 140 N.W. 1013 (1913). The state’s interest in protecting children from harm
outweighs any religious beliefs regarding the propriety of corporal punishment. Dep’t of Social
Services v Emmanual Baptist Preschool, 434 Mich. 380, 388; 455 NW2d 1 (1990). It has long
been established that a parent may not administer excessive physical discipline, or physical
discipline that actually harms a child, no matter what the parent might subjectively believe. People
v Green, 155 Mich. 524, 529-533; 119 N.W. 1087 (1909). We conclude that the trial court did not
err by characterizing plaintiff’s use of corporal punishment as domestic violence in this case.
Domestic violence is a factor that must be explicitly considered in custody disputes. MCL
722.23(k). The Child Custody Act, MCL 722.21 et seq., does not provide its own definition of
domestic violence. However, the Domestic Violence Prevention and Treatment Act, MCL
400.1501 et seq, defines “domestic violence” as:
the occurrence of any of the following acts by a person that is not an act of self-
defense:
(i) Causing or attempting to cause physical or mental harm to a family or
household member.
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(ii) Placing a family or household member in fear of physical or mental
harm.
(iii) Causing or attempting to cause a family or household member to
engage in involuntary sexual activity by force, threat of force, or duress.
(iv) Engaging in activity toward a family or household member that would
cause a reasonable person to feel terrorized, frightened, intimidated, threatened,
harassed, or molested. [MCL 400.1501(d).]
A “family or household member” may include a spouse, former spouse, present or former dating
or sexual partner, present or former “individual” co-resident, present or former relative by
marriage, other parent of the individual’s child, or minor child of any of the above. MCL
400.1501(e).
We recognize that it is generally improper to construe a statute by reference to a definition
provided in an unrelated statute. Coalition Protecting Auto No-Fault v Michigan Catastrophic
Claims Ass’n, 317 Mich. App. 1, 19; 894 NW2d 758 (2016). Rather, the meaning of undefined
words should usually be ascertained by reference to a common dictionary, Griffith v State Farm
Mut Auto Ins Co, 472 Mich. 521, 526; 697 NW2d 895 (2005), or a legal dictionary if the term has
a peculiar meaning in the law, Safdar v Aziz, 327 Mich. App. 252, 262; 933 NW2d 708 (2019). In
Merriam-Webster’s Collegiate Dictionary (11th ed), domestic violence is defined as “the inflicting
of physical injury by one family or household member on another; also: a repeated or habitual
pattern of such behavior.” Black’s Law Dictionary (11th ed) defines the term as “[v]iolence
between members of a household or between romantic or sexual partners; an assault or other
violent act committed by one member of a household on another or by a person on the person’s
romantic or sexual partner.” Thus, the dictionary definitions of “domestic violence” closely match
the definition provided in MCL 400.1501. The definition of “domestic violence” in MCL
400.1501 also is clearly consistent with the Child Custody Act’s overriding goal of promoting the
best interests of the children involved in custody disputes. See Lieberman, 319 Mich. App. at 78.
We therefore hold that “domestic violence” as used by MCL 722.23(k) includes “domestic
violence” as defined in MCL 400.1501.1
1
The instant matter is not criminal in nature, so we are not presented with any question of whether
the criminal offense of assault under MCL 780.81(a), which defines certain offenses in the same
terms as does the Child Custody act (e.g., MCL 780.81(a)(2) refers to “an individual who assaults
his or her former spouse”), is in pari materia with that Act. We hold only that conduct that
constitutes “domestic violence” within the meaning of the Domestic Violence Prevention and
Treatment Act necessarily constitutes “domestic violence” within the meaning of the Child
Custody Act. It is generally improper to apply a definition from one statutory scheme to another
by rote. See Coalition Protecting Auto No-Fault v Michigan Catastrophic Claims Ass’n, 317 Mich
App 1, 19; 894 NW2d 758 (2016). Furthermore, there already exist specific animal cruelty
criminal statutes. See MCL 750.49-750.70a. If multiple penal statutes are potentially applicable,
prosecutors may charge a defendant with both a more-general and a more-specific offense only if
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Consequently, the trial court’s conclusion that plaintiff’s use of corporal punishment
constituted domestic violence was not against the great weight of the evidence. It was undisputed
that plaintiff’s standard response to “willful disobedience” involved discussing with the child the
reason he or she was being punished, prayer, spanking the child on the buttocks approximately
five times with a PVC pipe, and expressions of love at the end of the ritual. Plaintiff commonly
used sufficient force to leave red marks on the children’s skin for the rest of the day, and his
spankings once left a child with bruises. The parties’ eldest daughter indicated that she could
sometimes hear “the swing of the paddle” and “the cries of the kids” from another room. Even if
plaintiff was acting on the basis of his religious beliefs and without malicious intent, the fact
remains that his corporal punishment involved the infliction of injury on members of his
household. We further observe that “domestic violence” unambiguously includes the infliction of
mental harm, and it is obvious that a combination of cruelty and serious physical harm with
expressions of love would further inflict mental harm upon any reasonable person.
In further support of its finding of proper cause, the trial court cited plaintiff’s abusive
treatment of family pets. There was evidence that plaintiff threw a family dog against the wall for
chewing on shoes, kneed another dog in the chest for stealing food, and shot an airsoft pistol at a
cat that was on the counter. Plaintiff admitted the truth of the latter two allegations. We hold that
the trial court did not err.
We first emphasize that although it is likely criminal and certainly reprehensible, harmful
or abusive conduct toward an animal is not per se domestic violence. A pet cannot be a spouse,
MCL 400.1501(e)(i), in any legal jurisdiction of which we are aware. The word “individual” used
in MCL 400.1501(e)(ii) to (vii) is not defined by statute, so we again consult a dictionary.
Common usage of the word “individual” is typically limited to human beings, not any other kind
of entity. See, e.g., Merriam-Webster’s Collegiate Dictionary (11th ed). Therefore, a pet obviously
cannot satisfy any of the possibilities under MCL 400.1501(e) under which it would be a “family
or household member” within the meaning of the Domestic Violence Prevention and Treatment
Act or the Child Custody Act. Thus, a pet cannot be a victim of “domestic violence” under either
Act.
Nevertheless, it is well-known that many people feel that their pets are part of their family,
form deep and lasting emotional bonds with their pets, and feel tremendous personal responsibility
for their pets. In most cases, this would be all the more true for a child. Harmful or abusive
conduct toward an animal is not per se domestic violence, for the reasons already noted. However,
intentionally harming an animal with whom a child (a “person” under the Act) has a significant
emotional bond could constitute “engaging in activity toward a family or household member,” i.e.,
toward the child, “that would cause a reasonable person” (again, the child) “to feel terrorized,
the two offenses are actually distinct; if the statutes prohibit the same conduct, prosecutors must
charge under the most-specific statute. People v LaRose, 87 Mich. App. 298, 302-304; 274 NW2d
45 (1978); People v Ford, 417 Mich. 66, 77-83; 331 NW2d 878 (1982). Likewise, in the context
of personal protection orders, causing or threatening harm to an animal is already an explicit basis
for obtaining a PPO. MCL 600.2950(1)(k). Our opinion would therefore be not only dicta, but
substantively superfluous in the criminal or personal protection order contexts.
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frightened, intimidated, threatened, harassed, or molested,” MCL 400.1501(d)(iv), or, in other
words, would constitute domestic abuse directed at the child. Directing such activity toward a
minor child (a “family member” under the Act, MCL 400.1501(e)(vii)), “for the purpose of
compelling obedience by such a minor child” often, if not invariably, is also an act of intimidation
and would place such a minor child in reasonable fear of mental harm, MCL 400.1501(d)(i), and
thus could constitute domestic abuse under the Act as well. Thus, harmful or abusive conduct
toward a pet can constitute domestic violence under either MCL 400.1501(d)(i) or MCL
400.1501(d)(iv), if done for the purpose of distressing or coercing a person emotionally bonded to
that pet. The resolution of that issue in a given case will turn on the trial court’s factual findings
regarding the reason or reasons why someone engaged in particular actions with regard to an
animal, and the nature of the bond between a child and the animal at issue.2 In any event, such
misconduct is at least relevant to plaintiff’s creation of an atmosphere harmful to the children’s
well-being. See Vodvarka, 259 Mich. App. at 512. For either reason, the trial court here properly
relied upon plaintiff’s abusive treatment of the family pets in support of its finding of proper cause.
The trial court also found proper cause to revisit the custody order on the basis of the
children’s living conditions while in plaintiff’s care. Again, the trial court’s findings were not
against the great weight of the evidence. There was evidence that plaintiff did not always ensure
that the children received routine medical care while in his custody, that he was not diligent in
following up on the specific medical needs of particular children, that the girls did not always have
access to appropriate feminine hygiene products, and that he encouraged one of his daughters to
seek religious guidance upon learning that she was self-harming but refused any kind of
professional mental health treatment. Plaintiff also made the decision to enroll the children in a
church-based school for several years. We do not in any way mean to suggest that a religious
educational institution is improper per se, but this particular school was not accredited and
provided little guidance to the children in their academic studies. The children were required to
teach themselves from packets of information and were primarily supervised by volunteer
“monitors” who were not always prepared to respond to the students’ questions. There was
evidence that some of the children were not well-suited for such an independent style of learning,
and both of the parties’ children who reached the age of 18 while attending the school dropped out
without completing the program.3 Even if they had completed the program, they would not receive
a legally valid diploma. The most recent child to leave the school was seriously behind in several
core subjects. Such abject neglect of the children’s educational needs and failure to provide them
with basic necessities for survival in the real world is inherently harmful to them.
C. CONCLUSION
2
In other words, whether harmful or abusive conduct toward a pet constitutes “domestic violence”
within the meaning of the Domestic Violence Prevention and Treatment Act and the Child Custody
Act turns greatly upon the actor exploiting a child-victim’s emotional bond with the pet and, in
effect, using harm or threats to the pet as an instrumentality directed at a child, who thereby
becomes a victim of domestic violence for purposes of the Child Custody Act.
3
The parties’ eldest son never attended the church-based school, but he also dropped out of school
at the age of 18 while in plaintiff’s care.
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The trial court’s findings regarding domestic violence and the deficiencies in the care they
received from plaintiff were well-supported by the record. Furthermore, those matters related to
several best-interest factors, including Factors (c) (capacity and disposition to provide food,
clothing, medical care, and other material needs), (h) (home, school, and community record), and
(k) (domestic violence). Plaintiff’s neglect and mistreatment of the children posed a significant
risk to each child’s mental health, physical well-being, and very ability to survive in the future.
Accordingly, the trial court did not err by finding proper cause to revisit the parties’ custody
arrangement.
IV. BEST-INTEREST ANALYSIS
Plaintiff also argues that the trial court erred in its analysis of the statutory best-interest
factors. We agree that the trial court erred with respect to one factor, but we conclude that the trial
court’s ultimate decision to grant defendant’s motion for change of custody was not an abuse of
discretion.
A. APPLICABLE LEGAL STANDARDS
The parties do not dispute that the children had an established custodial environment, MCL
722.21(1)(c), with plaintiff. Therefore, changing that custodial environment by granting defendant
sole legal and physical custody of the children requires defendant to prove by clear and convincing
evidence that the modification would be in the children’s best interests. Foskett v Foskett, 247
Mich. App. 1, 5-6; 634 NW2d 363 (2001); Griffin v Griffin, 323 Mich. App. 110, 119; 916 NW2d
292 (2018). A trial court’s analysis of a child’s best interests is guided by the statutory factors set
forth in MCL 722.23. Griffin, 323 Mich. App. at 114-115. “Clear and convincing evidence” is a
less stringent evidentiary standard than “beyond a reasonable doubt,” but it is the most demanding
civil standard and requires the evidence to be significantly more persuasive than a mere
preponderance. In re Martin, 450 Mich. 204, 225-228; 538 NW2d 399 (1995); see also Serafin v
Serafin, 401 Mich. 629, 638-640; 258 NW2d 461 (1977) (COLEMAN, J., concurring).
B. BEST-INTEREST FACTORS
Factor (a) considers the “love, affection, and other emotional ties existing between the
parties involved and the child.” MCL 722.23(a). Plaintiff does not challenge the trial court’s
finding that this factor favored both parties equally. We agree. The witnesses generally agreed
that both parties had loving bonds with the minor children, even if defendant’s relationship with
some of the children was strained at times after the divorce. The trial court’s finding regarding
this factor was not against the great weight of the evidence.
Factor (b) considers the “capacity and disposition of the parties involved to give the
children love, affection, and guidance and to continue the education and raising of the child in his
or her religion or creed, if any.” MCL 722.23(b). The trial court found that the parties had an
equal capacity and disposition to continue raising the children in their religion, but that Factor (b)
favored defendant as to the children’s education.
Regarding the parties’ religious guidance, it is undisputed that plaintiff promoted the
children’s religious development and would continue to do so in the future. Defendant testified
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that she regularly visited the children on the weekends, but she did not take them on community
outings on Sundays because she understood that they had church-related activities. When the
children were in her care, she took them to her local church every Sunday. Defendant indicated
that her church conformed to the same general doctrines that the children were accustomed to, and
she ensured that the children had access, in her home and at church, to the same version of the
King James Bible that they had grown up with. The trial court’s finding that the parties had an
equal capacity for providing the children with religious guidance was not against the great weight
of the evidence.
Regarding the children’s education, we have already discussed the severe and debilitating
deficiencies in plaintiff’s provision of education to the children. In contrast, defendant planned to
enroll the children in a highly rated public school district and had already made arrangements with
the school district to accommodate the children’s delayed start for the new academic year in the
event she was awarded physical custody. Defendant was also helping the parties’ eldest daughter
to fill in the gaps left by plaintiff in her education so she could obtain a GED and pursue a college
education. In light of the foregoing, the trial court’s determination that Factor (b) favored
defendant was not against the great weight of the evidence.
Factor (c) considers the “capacity and disposition of the parties involved to provide the
child with food, clothing, medical care or other remedial care recognized and permitted under the
laws of this state in place of medical care, and other material needs.” MCL 722.23(c). The trial
court found that although plaintiff could have provided for the children, he nevertheless failed to
do so; particularly regarding clothing, medical care, and sanitation and hygiene. There was some
dispute whether the children’s occasional use of clothing that was in poor condition or seasonally
inappropriate was by their own choice. Nevertheless, one of the children developed sores or rashes
because she did not have a properly fitted bra. Plaintiff indicated that he attempted to order a new
bra for that child, but someone else ultimately helped the child get appropriate undergarments. A
friend of the family also testified that she had to purchase feminine hygiene products for the girls
because they had inadequate supplies in plaintiff’s home. Plaintiff did not have a regular family
doctor for the children and had not taken them for routine examinations in over a year. Plaintiff
failed to consistently follow up on speech therapy and vision care for one of the children or pursue
timely orthodontic care for another child.
In contrast, although defendant had little opportunity to address the children’s medical
needs while they remained primarily in plaintiff’s physical custody, she arranged sports physicals
for the children while they stayed with her during these proceedings, enrolled the daughter who
had a history of self-harming in professional counseling, selected a family physician, dentist, and
optometrist for future care, and was prepared to add the children to her health insurance policy if
she received custody. Defendant also purchased clothing and other items for the children during
their stay, sent them school supplies in the past, and had a history of paying child support. The
trial court’s finding that Factor (c) favored defendant was not against the great weight of the
evidence.
Factor (d) considers the “length of time the child has lived in a stable, satisfactory
environment, and the desirability of maintaining continuity.” MCL 722.23(d). The trial court
recognized that the children had stability with plaintiff in the sense that he had been their primary
caregiver since the parties’ divorce. It concluded that Factor (d) still weighed in favor of defendant
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because plaintiff’s care had not been satisfactory. The plain language of MCL 722.23(d) includes
the desirability of maintaining the existing environment within its scope. Thus, in light of the trial
court’s conclusion that plaintiff failed to create an acceptable environment for the children, the
longevity of his care did not cause the weight of this factor to tip in his favor. Furthermore, the
children had spent the last three years living with plaintiff in his father’s home in Dundee, but
plaintiff relocated to Gaylord, Michigan, while defendant’s motion was pending. Although the
children had previously lived with plaintiff in the same home in Gaylord, the move would require
that they change their school and church yet again, which substantially decreased the overall
stability they had with plaintiff. The trial court’s finding that Factor (d) favored defendant was not
against the great weight of the evidence.
Factor (e) considers the “permanence, as a family unit, of the existing or proposed custodial
home or homes.” MCL 722.23(e). The trial court found that this factor favored defendant because
plaintiff’s home involved a setting in which domestic violence existed, while plaintiff provided a
more loving and affirming setting that was free from domestic violence. The trial court’s concern
is appropriate, as we have discussed. However, the acceptability of the custodial home or homes
is not pertinent to this factor. Fletcher v Fletcher, 447 Mich. 871, 884-885; 526 NW2d 889 (1994).
It is “legal error for the trial court to consider . . . acceptability, rather than permanence, of the
custodial unit” when making findings under Factor (e). Id. at 885. The stability, health, or safety
of the environment provided by a party is considered in other factors. Here, the children had
consistently resided with plaintiff and his wife as a family unit since the parties’ divorce. In
contrast, before defendant’s 2018 motion, the children only visited defendant a few times a year
and physically resided with her only a few days at a time. Thus, there was less of a sense of
permanence in defendant’s prospective household, physically or as a family unit. The trial court’s
determination that Factor (e) weighed in favor of defendant was contrary to the great weight of the
evidence.
Factor (f) considers the “moral fitness of the parties involved.” MCL 722.23(f). A parent’s
“questionable conduct is relevant to [this factor] only if it is a type of conduct that necessarily has
a significant influence on how one will function as a parent.” Fletcher, 447 Mich. at 887. The
trial court found that Factor (f) favored defendant because of the “domestic violence and
psychological violence” that existed in plaintiff’s home. The trial court determined that plaintiff’s
use of corporal punishment crossed the line between effective discipline and wrongful conduct,
and his mistreatment of the family pets perpetuated a fearful environment to compel good
behavior. For the reasons already explained, the court’s finding was not against the great weight
of the evidence. Further, because plaintiff’s tendency toward violent behavior was a significant
factor in how he functioned as a parent, the trial court did not err by considering these issues under
Factor (f). See id. at 887 n 6 (identifying abusive behavior as relevant to moral fitness).
Plaintiff relies on testimony indicating that defendant began drinking and smoking after
the divorce, contrary to the way the children had been raised. This testimony does not undermine
the trial court’s finding regarding this factor. First, defendant explained that she had never smoked
in front of her minor children, did not keep alcohol in the house, and only consumed a single
alcoholic beverage when she drank in the children’s presence. There was no evidence that these
activities affected how she functioned as a parent, so they are not relevant to Factor (f). Id. at 887.
Secondly, although smoking and drinking may not be healthy behaviors to model for a child, it
would not be against the great weight of the evidence to conclude that violent and cruel behavior
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is a far more serious moral failing. The trial court did not err in finding that Factor (f) favors
defendant.
Factor (g) considers the “mental and physical health of the parties involved.” MCL
722.23(g). The trial court found that this factor slightly favored plaintiff on the basis of defendant’s
physical health. Neither party challenges the trial court’s finding regarding Factor (g).
Factor (h) considers the “home, school, and community record of the child.” MCL
722.23(h). The trial court found that Factor (h) favored plaintiff as to the children’s home record
because of his long-standing role as primary caregiver. However, this factor favored defendant as
to schooling because the children did not receive an appropriate education under plaintiff’s care.
Insofar as we can discern, plaintiff does not actually challenge the trial court’s findings under
Factor (h), and he seemingly agrees that Factor (h) favors both parties. Rather, he argues that the
trial court’s finding that Factor (h) favored him as to the home and community record is
inconsistent with its findings in favor of defendant under other factors. We disagree. Although
plaintiff’s home environment was undesirable, plaintiff nevertheless raised the children in a strong
community setting, with substantial support from family and members of their church, an aspect
of the children’s lives not considered in the same manner under other factors. The trial court’s
findings were neither against the great weight of the evidence nor internally inconsistent.
Factor (i) considers the “reasonable preference of the child, if the court considers the child
to be of sufficient age to express preference.” MCL 722.23(i). The trial court determined that the
minor children, the youngest of whom was then nine years old, were old enough to express a
preference. The trial court questioned the children in a separate, confidential record, and the trial
court’s comments on the record indicate that its interviews were thorough. To the extent that the
children expressed a preference, the trial court took their preferences into account. The parties do
not challenge the trial court’s treatment of this factor.
Factor (j) considers the “willingness and ability of each of the parties to facilitate and
encourage a close and continuing parent-child relationship between the child and the other parent
or the child and the parents.” MCL 722.23(j). Plaintiff argues that the trial court “found for
[defendant] and did not elaborate on this issue.” However, the trial court clearly explained its
reasoning that Factor (j) favored defendant because plaintiff refused to allow defendant to exercise
overnight weekend parenting time in her home while she was “living in sin” with her fiancé. The
trial court acknowledged that plaintiff’s position was rooted in his religious beliefs, but found that
plaintiff’s decision interfered with the relationship between defendant and the children, even if that
was not his intention. The trial court further reasoned that because of plaintiff’s firm-set beliefs
and values, he was not fully able to encourage the children’s relationship with defendant. Indeed,
plaintiff never allowed the children to stay with defendant overnight outside of the specific holiday
parenting time set forth in the parties’ previous custody order. The order also granted defendant
overnight parenting time during 16 weekends each year and “reasonable parental rights” identical
to the parties’ previously agreed-upon definition of “joint legal custody.” Nevertheless, plaintiff
readily admitted that he prevented that parenting time from taking place by refusing to reach
mutually agreeable dates. Whatever plaintiff’s motives, the trial court’s findings regarding Factor
(j) were fully supported by the record and were not against the great weight of the evidence.
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Factor (k) considers “[d]omestic violence, regardless of whether the violence was directed
against or witnessed by the child.” MCL 722.23(k). The trial court found that this factor weighed
substantially in favor of defendant because of plaintiff’s violent behavior. We have already
extensively discussed the issue of plaintiff’s domestic violence. The trial court’s finding that this
factor favored defendant was not against the great weight of the evidence.
Finally, Factor (l) considers “[a]ny other factor considered by the court to be relevant to a
particular child custody dispute.” Plaintiff offers a confusing, conclusory, and unexplained
statement that the trial court erred in finding this factor to favor defendant. We cannot find in the
record any ruling or statement by the trial court regarding Factor (l), and plaintiff does not suggest
any “other factor” that the trial court should have considered relevant.4 The trial court therefore
cannot have erred under Factor (l).
C. CONCLUSION
In sum, with the exception of Factor (e), the trial court did not commit clear legal error or
make findings against the great weight of the evidence. Nevertheless, the trial court’s error
regarding Factor (e) was harmless and does not require reversal, because in all other respects the
remaining best-interest factors overwhelmingly supported defendant’s motion for change of
custody. Therefore, the trial court’s ultimate decision to award defendant sole legal and physical
custody of the children was not an abuse of discretion. See Maier v Maier, 311 Mich. App. 218,
227; 874 NW2d 725 (2015) (finding error regarding two factors harmless where several other
factors supported the trial court’s decision). The trial court engaged in a thoughtful and detailed
analysis of the facts and properly granted defendant’s motion.
Affirmed.
/s/ Amy Ronayne Krause
/s/ Jonathan Tukel
4
Plaintiff presents a perfunctory argument concerning the trial court’s failure to consider a
recommendation offered by a Friend of the Court investigator who, in pertinent part, proposed that
plaintiff retain primary physical custody of the children. Plaintiff cites no authority for his implicit
suggestion that the trial court must consider an investigator’s recommendation. We therefore deem
plaintiff’s unsupported argument abandoned. Blackburne & Brown Mtg Co v Ziomek, 264 Mich
App 615, 619; 692 NW2d 388 (2004). Furthermore, we would consider it inappropriate for the
trial court to abdicate its own responsibility to determine the children’s best interests.
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